Hobby Lobby and the shape of things to come

What are the implications of today’s Hobby Lobby decision for challenges by non-profit religious institutions, such as the Little Sisters of the Poor, to Obamacare’s mandate that they facilitate the free distribution of contraceptives and abortifacients to any of their employees who desire them? Professor Mark Rienzi, who together with the Beckett Fund for Religious Liberty has been litigating these sorts of religious liberty cases against the Justice Department, offers his perspective, via the Volokh Conspiracy.

The “accommodation” that the government offers to religious institutions such as the Little Sisters is a form they must sign that authorizes a third party to provide the objectionable drugs in their place. Although the Hobby Lobby majority does not tackle the specific question of whether this “accommodation” would pass muster under Religious Freedom Restoration Act (RFRA), Prof. Rienzi contends that much of the Court’s reasoning will apply to the non-profit cases.

Moreover, “that reasoning all points towards another defeat for the Government,” in Rienzi’s view. He notes that in the non-profit cases, the government has relied almost exclusively on the “attenuation” argument — i.e., that the objections of the employer to complicity in abortion are too “attenuated” to state a violation of the RFRA.

But the Supreme Court rejected that argument today. It found that the government’s argument arrogated to it the authority to provide a binding national answer to this religious and philosophical question, and amounted to the government deciding that the religious beliefs of the Hobby Lobby owners are “flawed.”

This suggests that the government will find it very difficult to minimize the burden imposed on groups like the Little Sisters by claiming, as it has in many lawsuits, that they need do nothing more that sign a form.

Rienzi also believes that the Hobby Lobby decision undermines the Government’s “least restrictive means” argument in the non-profit cases:

The opinion for the Court makes clear that the Government must explain why it cannot simply pay for the drugs itself. And Justice Kennedy’s concurring opinion states that “RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers — burdening one while accommodating the other — when it may treat both equally by offering both of them the same accommodation.” Yet that is precisely what the Government proposes to do to non-profits: It provides a full exemption to some religious employers (churches) while denying that same exemption to others (such as Little Sisters of the Poor).

Finally, Rienzi notes that just after the Hobby Lobby decision was announced, the Eleventh Circuit Court of Appeals issued an injunction in a non-profit mandate case, Eternal Word Television Network v. Burwell, which involves a non-profit television network founded by nuns. The injunction protects the plaintiff from having to comply with the Government’s “accommodation” pending appeal.

Thus, as Ed Whelan said earlier today, the Hobby Lobby decision would seem to augur well for the success of the ongoing challenges by religious non-profit groups like the Little Sisters of the Poor.